[Congressional Record Volume 169, Number 157 (Wednesday, September 27, 2023)]
[Senate]
[Pages S4709-S4716]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SECURING GROWTH AND ROBUST LEADERSHIP IN AMERICAN AVIATION ACT--MOTION
TO PROCEED--Continued
The PRESIDING OFFICER. The Senator from Delaware.
Nominations of Robert G. Taub and Thomas G. Day
Mr. CARPER. Good afternoon, Madam President. I am here today to urge
my Senate colleagues to join me in considering the confirmation of two
excellent people to serve on the Postal Regulatory Commission, which is
the governing body for the U.S. Postal Service: Robert Taub, who is
currently a commissioner and we are seeking to reconfirm him; and also
Thomas Day, who has come through our Homeland Security and Governmental
Affairs Committee and, I think, unanimously recommended for a position
on the Postal Regulatory Commission.
Both of these public servants have spent literally decades bettering
our country.
Mr. Taub has served on the Commission since 2011, and he actually
served as its chairman for, I think, more than 6 years.
Mr. Day has spent--listen to this--over 35 years at the Postal
Service--35 years at the Postal Service--and another service, as I
recall, in uniform for our country.
I would like to add that we have unanimously confirmed Mr. Taub not
once but twice previously, and there is no doubt that he has served our
country well.
I want to share three stories with you, if I could: a little bit
about the history and the importance of the Postal Service; another
about Mr. Taub's role in making the Agency what it is today; and a
third about Mr. Day's influence on the function of our postal system
across this country.
In 1787, the Founding Fathers of our country gathered in Philadelphia
literally to draft a constitution to be able to outline how a new
country might be formed and actually operate and work for the
betterment of people who lived here then and in the future. They
drafted the Constitution, and they sent that Constitution out across
the 13 colonies and asked the colonies to look at it, kick the tires,
find out what they liked and what they thought ought to be changed.
The first State to actually take it up and affirm--ratify, if you
will--that Constitution was the colony that is now Delaware, the State
of Delaware.
On December 7, 1787, after a week or so of debate at the Golden
Fleece Tavern, the Founding Fathers of Delaware said: We like this
Constitution. They maybe tweaked it a little bit and sent it on down to
the other colonies, who followed suit. Delaware was, for one whole
week, the entire United States of America. Then we opened it up. We let
in Pennsylvania and Maryland. And the rest, I think, has turned out
pretty well, for the most part, until now. Hopefully, we will continue
to exist for many, many years, decades, centuries into the future.
One key element of the Constitution was the creation of the Postal
Service. Our first Postmaster General was actually, believe it or not,
Ben Franklin. Ben Franklin.
The establishment of the Postal Service represented an important
early effort to bind us together as a nation--to bind us together as a
nation--to unite us in communication with one another. That work
continues today as postal workers cover all 50 States. They did it
today; they will do it at
[[Page S4710]]
least 6 days this week--and to also make sure that we have the ability
to provide the Postal Service to the folks who live in the U.S.
territories, deliver the mail that helps unite our families and helps
to grow our businesses and helps, really, to enable our democracy to
function and thrive.
More than two centuries later, we continue to live up to that
promise. In 2006, one of our colleagues, Senator Susan Collins and I
led the passage of the Postal Accountability and Enhancement Act
literally on this floor where we are gathered today. That legislation
modernized the Postal Service for the first time, I think, since 1970.
Just last year, we went on to pass, on top of that, the Postal
Service Reform Act to shore up the Agency's financial foundation,
including a requirement for all Postal Service retirees to enroll in
Medicare when they became eligible for those benefits.
Over the past couple of years, I have had the opportunity to work
with Postmaster General Louis DeJoy and the Postal Commission to make
the Agency even more energy efficient.
Together, we successfully secured billions of dollars to expand the
number of electrical vehicles in the Postal Service's delivery fleet.
The Postal Service has one of the biggest delivery fleets in the
country. They also have one of the oldest and one of the most polluted.
What we have done is worked with the leadership of the Postal Service
to make sure that those old vehicles time out. They really, for the
most part, have timed out. They need to be replaced. They are going to
be replaced with vehicles that will not only help us deliver the mail--
and do an even better job of that--but to make sure the delivery
vehicles that are out there aren't making worse the climate crisis that
we are going through as a nation, as a planet.
I want to tell you a little bit more about Mr. Taub, if I could, and
how he has been integral to the changes that we have seen in the Postal
Service, especially as it has become more modern and more efficient.
After spending years as a staff member to Members of Congress and
Ambassadors and working for the Government Accountability Office, Mr.
Taub, native New Yorker, became chief of staff to then Congressman John
McHugh--an old friend and a very good Member of the House; a
Republican, as I recall.
Under Representative McHugh's leadership, Mr. Taub helped to craft
the Postal Accountability and Enhancement Act in the House of
Representatives. That is the same legislation that I mentioned earlier
that I worked on with Senator Collins. Together with Representative
McHugh and his team, we ushered the bill to the President's desk, where
it was signed into law, again, in 2006.
This transformation of the Postal Service was just the beginning of
Mr. Taub's involvement with the Postal Service. After establishing his
expertise in the public sector, he continued on beyond this work when
Representative McHugh was appointed Secretary of the Army.
As Secretary McHugh's principal civilian advisor, Mr. Taub helped
lead a workforce of more than--get this--1.2 million people and managed
an annual budget exceeding $200 billion--no small feat. For his
exemplary work, Mr. Taub was awarded the Army's Decoration for
Distinguished Civilian Service.
All this led to Mr. Taub serving on the Postal Regulatory Commission
on not one, not two, but three Presidents, including both Democrats and
Republicans.
He was first nominated to the Commission in 2011, and his strong
leadership led to his appointment as chairman of the Commission in
2014.
As I like to say: In adversity lies opportunity.
And despite the troubles left over from a previous chairman, Mr. Taub
took adversity in stride. He embraced the role of chairman with
diligence and grace. He led a massive undertaking to study and to
revise a postal rate system. As a result was the Postal Accountability
Enhancement Act he helped to pass.
In 2016, his work paid off when he was once again confirmed to be
chairman to the Commission and continued to serve as chairman.
Mr. Day has had an incredible record with the Postal Service as well.
Let me just take a minute to talk about him.
In his 35 years at the Agency, he has held almost every role
imaginable, including that of vice president of the engineering
department and the government affairs department, as well as the chief
sustainability officer.
In his role on the sustainability team, Mr. Day helped lead the
Postal Service into the environmentally conscious practices of the 21st
century.
As chairman of the Environment and Public Works Committee, I know the
importance--that is my role--but I know the importance of our Agencies
carrying out practices that protect our planet. Mr. Day shares this
belief and understands it firsthand.
For example, he has been working to reduce the fuel emissions of the
aging postal fleet I talked about and has done that over the past
decade.
Let me be clear, if I could. The kind of institutional knowledge and
expertise that Mr. Day holds is unique, and it would make him an
extremely valuable asset on the Commission.
Mr. Day also has experience working with the exchange of mail on an
international scale, serving in senior positions at the Universal
Postal Union, the United Nations agency, and at the International Post
Corporation.
On top of that, he is a graduate of the U.S. Military Academy at West
Point and has bravely served in the U.S. Army. Besides being a captain
and a Vietnam veteran serving in the U.S. Senate, when I learned about
his service in the Army--I am a Navy guy--I said: Different uniforms,
same team, and thanked him for all of his service in uniform as well.
There is no doubt that someone with his commitment to our Nation
would make a terrific addition to the Postal Regulatory Commission.
Together, Mr. Taub and Mr. Day will continue revising the postal rate
system and modernizing the Agency for the betterment of our country.
For this reason, among many others, we think it is imperative that we
confirm both of them--not one of them but both of them--and make sure
the Commission is fully, fully staffed.
Congressional and Postal Service customers rely on the Commission to
hold the Agency accountable for its service performance and to ensure
its prices follow the law and its practices follow the law, and it is
our duty to make sure the Agency can perform at the highest level,
including for the good of our planet.
I like to say service to others is the rent we pay for the space we
take up on this Earth. I think Mr. Taub and Mr. Day's decades of
service to this country is more rent than most of us will ever be asked
to pay.
I urge our colleagues to confirm both Mr. Taub and Mr. Day to ensure
that the Postal Regulatory Commission can continue to do its important
work on behalf of all of us, who are the fortunate beneficiaries of the
Constitution that was written all those years ago and the promise it
provided for our country.
With that, Madam President, I would note the absence of a quorum, and
I thank the Presiding Officer and I thank my colleagues and ask for
their support of the nomination of these two excellent, excellent
candidates.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Tribute to Terry ``Tito'' Francona
Mr. BROWN. Madam President, sometimes we come to the floor in maybe a
less serious vein. We are all incredulous that while we do our work
here and keep the government open, the people down the hall there are
playing political games and threatening a shutdown. And when 55,000
people in my State and probably 10,000 people in the Presiding
Officer's State will lose their jobs temporarily, will be furloughed,
will be laid off, all because they are trying to play political games,
we talk about that a lot. We need to fix that.
But, today, I want to rise for a moment on something more
lighthearted than that, and that is to honor the retiring manager of
the Cleveland Guardians, Terry Francona, called in Cleveland--referred
to as ``Tito'' Francona.
[[Page S4711]]
Cleveland will play their last home game with Tito as their manager
starting in maybe 20 minutes from now, something like that. Tito has
been a part of the team since 2013.
I call him by his first name. I don't know the Cleveland manager. I
have never met the Cleveland manager. But I have watched him. I watch a
lot of games on television. But we all refer to him by his first name,
``Tito.''
I was at a game earlier this summer, and we were pulling out in a
traffic jam, and Tito does what I have read in the Plain Dealer that he
does. All of a sudden, he passed us. The game was about an hour over,
and he rode by on his little scooter to his little Cleveland
condominium downtown, just the manager by himself.
(Mr. OSSOFF assumed the Chair.)
He didn't have airs about him. He is a normal guy, and we will
really, really miss him.
In his baseball career, he left Cleveland. He was the manager in the
2016 World Series, where my daughters and my wife and I--they broke our
hearts in game 7 to a team like the Chicago Cubs. And it was really
amazing that there was a rain delay in the ninth inning, and then they
came back and Cleveland lost in extra innings.
A week later, Donald Trump was elected. So I don't think it was a
good week for the country. But that is just my biased opinion, perhaps.
But in Ohio, in Cleveland, if you are a Cleveland Guardians fan, you
know about perseverance. His baseball career extends back to when he
joined Major League Baseball as a player. Spending 9 years in the
field, he played a year for Cleveland, but he is a baseball lifer. But
his life is very inextricably linked to Cleveland, as a baseball player
and manager.
I am not sure he was born in Cleveland. He lived in Cleveland when
his dad played for the Cleveland Indians in the old Municipal Stadium.
Notably, his dad twice was traded for Larry Doby, the first African-
American player in the American League and one of the Hall of Fame
members because of his baseball play, his courage, his guts, and his
note of being so important to history and breaking the color line.
I grew up watching his father play. I saw his father, once in a
double-header, get seven hits. And the eighth time he came to the
plate, Brooks Robinson--the third base player from the Orioles who just
passed away--Brooks Robinson threw him out. He would have been 8 for 8
in a double-header.
As I said, his dad was traded twice for Larry Doby. His dad, one
year, should have led the league at hitting, at .363 but was
disqualified because he had one too few plate appearances. He batted
399 times instead of 400, even though he walked a number of times--too
much inside baseball, maybe, for the Senate floor and for my colleagues
to care about.
But his dad played for years and was an All-Star in 1961. He hit .363
in 1959 and was a fan favorite.
So the Francona family was formed in Cleveland and grew up in
Cleveland in that sense. It reminds me of how baseball is a game that
spans generations and brings people together.
I grew up 2 hours south of Cleveland. My dad used to take us to Major
League Baseball games, to five or six games a year--five or six times a
year, often double-headers. And my dad hated the New York Yankees so
much that he would never take us to a Yankees game because he didn't
want Mickey Mantle, the star of the Yankees, to get 10 cents of his
ticket. So I never saw the Yankees play until I could drive myself to
New York.
When Tito Francona joined the Montreal Expos in 1981, he succeeded
his father as a baseball player. He played in Cleveland for a year. In
1990, he retired from the game and not a particularly stellar baseball
career, not as good as his father's.
But then he became a manager. He managed the Phillies. He managed the
Red Sox in two world championships. He then came home to us in
Cleveland in 2013. In 2016, Cleveland won the American League
Championship with the Indians--now, of course, the Guardians. He led
the team to the World Series.
As I said, game 7 was quite an experience that I could take my
daughters to, then in their thirties. And we had gone to baseball
games. And my dad took me for years, and we got to see this team we
loved and this team we followed so closely go to the World Series--a
team that wasn't considered at the beginning of the season World Series
caliber. And it was quite a season.
And the next year, Cleveland came back. They, at one point, won 22
games in a row. Only once in Major League Baseball did a team win more
than that, when the Giants, in 1926, won 26 in a row. So it was an
incredible streak.
But more important, his players reached a level of excellence that
was beyond what most people think was their skill level. Cleveland, to
owners that have never spent the money--owners in the Presiding
Officer's home State, in Atlanta, they try to buy pennants like the
Yankees do and the Mets do and the Dodgers do and the Red Sox do. They
spend so much money to try to buy the best players. Cleveland has never
had owners that were either that rich or that generous. So Tito had to
figure out how to win without that kind of money.
But what he has done, which I so much like, is he gets out of his
players a skill and a drive that most managers are not able to achieve.
You can tell he loves America's game. I mean, he shared that with all
of us.
He loves the city where his team plays and where he manages. He has
been there for 10 years, in Cleveland. I guess 11 years.
His players could have gone somewhere else and made more money. The
star player for Cleveland, a young man named Jose Ramirez, signed a
long-term contract, made a whole lot of money, but everybody said he
could have made so much more money if he had gone to New York or
Atlanta or L.A. or Boston and signed huge contracts with really rich,
generous owners. I think his players want to play for him, and he
helped put our team on the map again.
I just wanted to say to Tito Francona, thank you for everything you
have done for Cleveland. Thank you for the memories and the joy you
have brought so many of us as fans.
We celebrate his contributions to baseball, his commitment to
Cleveland, and his extraordinary career.
Remembering Tom Conway
Mr. President, on a much more serious note, I want to honor a friend
of mine who passed away this week, a national leader of stature who
made such a difference in working people's lives.
I come to this floor to talk about the dignity of work, to talk about
people who put their lives on the line and put their careers front and
center about workers. Tom Conway did that.
Tom Conway passed away in the last few days, the president of the
United Steelworkers. He joined the labor movement in 1978. He worked as
a millwright. ``Millwright'' means those workers who essentially fix
and make equipment work inside plants. He worked at the Burns Harbor
Works of Bethlehem Steel in northwest Indiana.
Forty years ago, 45 years ago, he joined Local 6787. He dedicated his
life to expanding opportunity and economic security for workers.
Whether on a picket line or sitting across from the steel executives,
his values were on his sleeve. His commitment to workers never wavered.
On trade issues and worker safety, always one of the first calls I
made was to talk to Tom Conway, to get wisdom from Tom Conway, to get
perspective from Tom Conway, because I knew always he was looking out
for the workers whom he represented.
Steelworkers in Ohio knew what those bad trade deals--from NAFTA to
PNTR with China, to TPP, to CAFTA--all the issues that, frankly, are a
big part of the reasons my State has struggled with so many lost jobs.
Given this devastation, Tom saw across the industry. You might
understand if he became a pessimist, threw up his hands, and gave up.
He was never that--far from that. He drew his energy from the
resilience of American steelworkers and steel communities across the
Midwest.
He knew what we know in Ohio, that American workers can compete with
anyone. They just need a level playing field. He never stopped fighting
for that level playing field, for fair trade, for real investment in
American industry, for strong enforcement of our trade laws.
Because of his advocacy and the advocacy of so many Ohio
steelworkers, we made real progress. We passed the
[[Page S4712]]
original Level the Playing Field Act, the landmark overall of our trade
remedy laws, to allow steelworkers to fight back against cheating by
China, against dumping steel from China, against other unfair foreign
competition. We passed the strongest ever ``Buy America'' rules to
ensure that American tax dollars support American workers.
He never gave up on American steel. He never gave up on American
workers. He saw the potential in this union to grow. He knew that, if
more people carried a union card, their lives would be better. It would
mean higher wages and better benefits. It would mean a more secure
retirement. It would mean a safer workplace. It would mean more control
over your schedule. That is what carrying a union card means.
My wife will say that her dad's union card saved her life. She grew
up and at 16 had an asthma attack. She lived almost 2 hours from
Cleveland Clinic. She got an ambulance to take her to the clinic. She
was there for a week. It saved her life. Her dad could afford that
care, that ambulance, that time in Cleveland Clinic because he carried
a union card, and they negotiated for healthcare benefits. That is what
Tom Conway did his whole life.
I wear on my lapel a pin depicting a canary in a birdcage. The
mineworkers used to take the canary down in the mines a hundred years
ago. If the canary died, the mineworker was on his own. He knew that he
didn't have a union strong enough or a government that cared enough to
protect him. That is why he carried the canary down into the mines.
This was given to me by a steelworker some 20 years ago in Lorain,
OH. I have worn it on my lapel ever since. And that is what Tom Conway
is about.
John Shinn, the secretary-treasurer of USW said: Solidarity wasn't
just a word to Tom. It was a way of life. He understood that, by
working together, we balance the scales against greedy corporations.
We see it now. Chrysler, now called Stellantis, has made $12 billion
just in calendar year 2023. Stellantis' CEO makes 800 times what the
entry-level worker at Stellantis makes.
Tom Conway understood that we fight against that kind of worker
greed, and we help lift up workers so they can share in the wealth
created by their work. Balancing those scales is what unions are all
about. It is why autoworkers are in that picket line. That is what they
are doing. It is what Tom Conway led the steelworkers to do.
We honor his memory, his legacy best by carrying on his life's work.
His successor at USW is Dave McCall, fellow Ohioan. Dave McCall worked
with and has known Tom Conway for over 40 years. He will serve out the
remainder of his term. I can't think of anyone better to carry on Tom's
legacy than Dave McCall.
Dave and I have been in the trenches together for the better part of
our entire careers, walking picket lines, talking to Ohio workers at
union halls and fighting against bad trade policy that this body far
too often falls for because corporate lobbyists swarm this place and
push these bad trade agreements, always, always, always at the expense
of workers.
Dave McCall understands the dignity of work, as Tom did. He spent his
whole life fighting for it. He would have made Tom Conway proud.
I ask my colleagues to join me in honoring Tom Conway today. Our
thoughts are with his family, his longtime partner Carol, his three
sons and six grandchildren, and with steelworker sisters and brothers
in Ohio and around the country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
U.S. Supreme Court
Mr. WHITEHOUSE. Mr. President, last week, I spoke about the scheme of
corruption by rightwing billionaires out to capture the Supreme Court.
I mentioned their lawyers' blockade of our investigation into this
corruption and described how little sense their lawyers' arguments
made.
That brings us to this speech today. The connection is that those, in
my view, nonsense lawyers' arguments badly needed propping up. And who
should come to the rescue but U.S. Supreme Court Justice Sam Alito.
Alito's actions propping up that argument caused me to write this
ethics complaint against him.
I ask unanimous consent to have printed in the Record my full letter
to Chief Justice Roberts and a portion of the letter from Mr. Rivkin at
the end of my remarks.
Mr. President, this complaint highlights some of the Supreme Court's
current legitimacy problems, which are legion. One is that the Court
has no procedure for an ethics complaint. I had to write to Chief
Justice Roberts, both in his capacity as Chief Justice and in his
capacity as Chair of the Judicial Conference, because, unlike in every
other Federal court, there is no clarity about process.
The Supreme Court has no formal process for receiving or
investigating such complaints, so they go there to die. Complaints
about Supreme Court Justices have sometimes been referred to the
Judicial Conference, and there, they have mostly disappeared. So it is
a mess.
The Supreme Court--the body with the highest responsibility to police
proper procedure and fair factfinding throughout the rest of
government--has no clear and proper procedure for itself. That is
weird, and that is wrong.
Nothing prohibits the Court or the Judicial Conference from adopting
procedures to address complaints of misconduct by the Justices. They
just haven't bothered to. The most basic modicum of any due process is
fair factfinding, but they have no process at all to find out even what
the facts are. That is simply not defensible. That has to change, and
my complaint presents the Court and the conference that opportunity.
Now let's move from procedure to the substance of my complaint about
Justice Alito. At one level, it is an obvious slam-dunk ethics
violation. At another, it will take a lot more digging. Let me explain.
My complaint relates to a so-called ``interview'' published on the
Wall Street Journal's editorial page July 28 of this year. How it is
both an interview and on the Wall Street Journal's editorial page, I am
not going to explore.
Justice Alito was the person ``interviewed.'' His ``interviewers''
were David Rivkin and James Taranto. In this interview, Justice Alito
offered his legal opinion that ``[n]o provision in the Constitution
gives [Congress] the authority to regulate the Supreme Court--period.''
That is the end of his quote.
That comment wasn't just floating in the ether; it was related to my
Supreme Court ethics bill, the Supreme Court Ethics, Recusal, and
Transparency Act, which the Senate Judiciary Committee had advanced
just 1 week before, and it also related to an array of congressional
oversight information requests from the Senate Judiciary Committee and
from the Senate Finance Committee.
More on that later. Back to the slam-dunk part. I sit on the Senate
Judiciary Committee, where we hear in every Supreme Court confirmation
hearing that it would be improper, that it would be wrong even in a
confirmation hearing to express opinions on matters that might come
before the Court. Well, obviously, Alito's interview comments--his Wall
Street Journal editorial page ``opining''--touched on a matter that
might come before the Court. That is the slam dunk.
Look at what other Justices have testified about this opining
problem, but let's start with Alito himself, who testified in his
confirmation hearing that it would be ``improper'' and a ``disservice
to the judicial process'' for a Supreme Court nominee to comment on
issues that might come before the Court. His words.
Consider also Justice Thomas, who testified that such opining would
``leave the impression that I prejudged this issue,'' which would be,
he said, ``inappropriate for any judge who is worth his or her salt.''
Justice Kagan told the committee it would be ``inappropriate'' for
her to ``give any indication of how she would rule in a case'' even
``in a somewhat veiled manner.''
Justice Kavanaugh testified that nominees ``cannot discuss cases or
issues that might come before them.'' He went on that prejudging an
issue in this manner is ``inconsistent with judicial independence,
rooted in Article
[[Page S4713]]
III.'' He continued that ``litigants who come before [the Court] have
to know we have an open mind, that we do not have a closed mind.'' He
quoted Justice Ginsburg: ``No hints, no forecasts, no previews.''
Justice Gorsuch went one better in his confirmation hearing. He
actually testified that this ``no opining'' rule applies to discussions
about Supreme Court ethics--the exact topic of Justice Alito's Wall
Street Journal opining.
Senator Blumenthal on the committee had asked Judge Gorsuch about
proposed ethics rules for the Supreme Court and whether they would
violate separation of powers. Gorsuch answered:
Senator, I am afraid I just have to respectfully decline to
comment on that because I am afraid that could be a case or
controversy, and you can see how it might be. I can
understand Congress' concern and interest in this area. I
understand that. But I think the proper way to test that
question is the prescribed process of legislation and
litigation.
In sum, the Court itself is plainly on record that this sort of
opining is wrong. So that is broken rule one, just offering the
opinion, but it gets worse. This was not just general opining out into
the general ether. Alito's comments referred to a specific, ongoing
legal dispute. Let me explain.
There are ongoing Senate investigations into the scandal of secret
billionaire gifts to certain Justices. The Senate Judiciary Committee
is investigating reports that Supreme Court Justices accepted and
improperly failed to disclose, in violation of Congress's disclosure
laws, lavish gifts from billionaire benefactors seeking to influence
the Court. The Senate Finance Committee is investigating Federal tax
compliance regarding those undisclosed gifts. Were tax laws broken?
Were proper declarations made?
In those congressional investigations, requests for information have
been sent out. In response to those requests, objections have been
raised. Here is where Alito comes in. The objections by the
billionaires' lawyers assert that Congress has no constitutional
authority to legislate in this area--hence, no authority to
investigate. They assert--in my view, plainly wrongly--that our
constitutional separation of powers blocks any congressional action in
this area, which in turn, they assert--also plainly wrongly, in my
view--blocks any congressional investigation.
Set aside the demerits of that argument--for which I refer you to the
lawyers' letters I added to the record in my previous speech and my own
takedown of that argument--sound or unsound, the point is, it is their
argument in that ongoing dispute.
In that ongoing dispute, Justice Alito's Wall Street Journal comments
prop up that argument. The language is nearly identical. You can
compare it for yourself. In fact, lawyers for some of the billionaires
to whom we have sent information requests have actually quoted Justice
Alito's comment in declining to respond.
So this is not just some improper general opining; it is a Supreme
Court Justice leaning in to one side of a specific ongoing dispute and
being used and quoted by one side of a specific ongoing dispute. That
is pretty bad. It gets worse.
One of the interviewers in that Wall Street Journal interview,
Attorney David Rivkin, wasn't just some interviewer; he is the attorney
for a party in that specific ongoing dispute. Rivkin is the attorney
making the precise legal argument that Alito echoed, and he is making
it in that ongoing dispute. None of this, of course, was disclosed in
the so-called ``interview.''
A logical mind would rightfully ask whether Justice Alito opined on
this matter at the behest of his interviewer, Attorney Rivkin. A
suspicious mind would even wonder whether Attorney Rivkin prepped his
witness, as lawyers are wont to do. With no means of factfinding, all
this remains unknown.
Bad enough to opine on some general matter that may come before the
Court; worse when the opining brings a Supreme Court Justice's
influence to bear in a specific ongoing legal dispute; and worse yet
when the influence of the Justice might have been summoned by counsel
to a party in that dispute.
The timeline is suspicious. Mr. Rivkin's interview with Justice Alito
was reportedly conducted in early July 2023. Well, on July 11, Chairman
Durbin and I had sent a letter to Rivkin's client in that dispute
inquiring about undisclosed gifts and travel provided to Justices. On
July 20, the Senate Judiciary Committee voted to advance my judicial
ethics bill.
By the way, the Rivkin-Alito Congress-has-no-authority argument fared
very poorly that day in the committee.
On July 25, Mr. Rivkin, by letter, refused to answer our information
requests on the purported ground that ``any attempt by Congress to
enact ethics standards for the Supreme Court would falter on
constitutional objections.'' Three days later, on July 28, comes the
supportive opining from Justice Alito about those constitutional
objections.
There are a lot of questions that need answering under oath about how
this mess played out.
But wait, there is more. Attorney Rivkin's client in that dispute has
a relationship with Justice Alito. He is a friend and ally of Justice
Alito's. Rivkin's client is Leonard Leo. Leo is not just a friend and
ally of Alito's. Our oversight questions that Attorney Rivkin is
blocking relate to Mr. Leo's actions to facilitate gifts for Supreme
Court Justices from rightwing billionaires of free and undisclosed
transportation and lodging. Mr. Leo didn't just facilitate; he was
Justice Alito's companion on the luxurious Alaskan fishing trip in 2008
that rightwing billionaires funded.
The relationship goes back. Leo's political organization ``had run an
advertising campaign supporting Alito in his confirmation fight, and
Leo was reportedly part of the team that prepared Alito for his Senate
hearings.''
So it appears that Justice Alito, A, improperly opined in the Wall
Street Journal, B, to influence a specific ongoing dispute, C, possibly
at the behest of counsel in that dispute, and D, to the benefit of a
personal friend and ally.
None of that was disclosed in the interview either, and it brings us
to the last and most damning point.
Justice Alito's opining, potentially at the behest of his friend and
ally's lawyer, props up an argument being used to block inquiry into
undisclosed gifts and travel received by Justice Alito himself. Justice
Alito himself is the ultimate beneficiary of his own improper opining.
It comes full circle.
In the worst-case scenario, Justice Alito broke the rules against
opining in order to facilitate an organized campaign to obstruct
congressional investigation into tens of thousands of dollars in gifts
he, Alito, personally received and doesn't want investigated.
Whether Justice Alito was unwittingly used to provide fodder for such
interference or intentionally participated in that interference plan
and whether he did it to protect the rightwing billionaires or himself
or both, those are questions whose answers require additional facts.
The heart of any due process is a fair determination of the facts.
Uniquely in the whole of government, the Supreme Court has insulated
its Justices from any semblance of fair factfinding. The obstruction of
our inquiries by Mr. Rivkin and Mr. Leo, fueled by Justice Alito's
opining, prevents Congress from gathering those facts, and the Supreme
Court won't even look. That can't be--not in a nation of laws. That is
flagrantly, obviously wrong.
So I have asked the Chief Justice or the Judicial Conference to take
whatever steps are necessary to develop a process to investigate this
affair and provide the public with the prompt and trustworthy answers
it deserves. The Supreme Court's legitimacy cannot stand on an edifice
of obstruction, secrecy, and lies.
To be continued, Mr. President.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Washington, DC,
September 4, 2023.
Dear Chief Justice/Chairman Roberts: I write to lodge an
ethics complaint regarding recent public comments by Supreme
Court Justice Samuel Alito, which appear to violate several
canons of judicial ethics, including standards the Supreme
Court has long applied to itself.
I write to you in your capacity both as Chief Justice and
as Chair of the Judicial Conference because, unlike every
other federal court, the Supreme Court has no formal process
for receiving or investigating such complaints, and asserted
violations by justices of relevant requirements have
sometimes been referred to the Judicial Conference and its
committees. I include all justices in carbon copy because I
am urging the
[[Page S4714]]
Supreme Court to adopt a uniform process to address this
complaint and others that may arise against any justice in
the future.
The recent actions by Justice Alito present an opportunity
to determine a mechanism for applying the Judicial Conduct
and Disability Act to justices of the Supreme Court. Nothing
prohibits the Court or the Judicial Conference from adopting
procedures to address complaints of misconduct. The most
basic modicum of any due process is fair fact-finding; second
to that is independent decision-making.
background
Some of the background facts here were related by members
of the Senate Judiciary Committee who signed a letter to you
dated August 3, 2023. As that letter explains, the Wall
Street Journal on July 28, 2023, published an interview with
Justice Alito conducted by David Rivkin and James Taranto.
Justice Alito's comments during that interview give rise this
complaint. The interview had the effect, and seemed intended,
to bear both on legislation I authored and on investigations
in which I participate.
During the interview, Justice Alito stated that ``[n]o
provision in the Constitution gives [Congress] the authority
to regulate the Supreme Court--period.'' Justice Alito's
comments appeared in connection to my Supreme Court Ethics,
Recusal, and Transparency Act, which the Senate Judiciary
Committee had advanced just one week before the publication
of this interview. That bill would update judicial ethics
laws to ensure the Supreme Court complies with ethical
standards at least as demanding as in other branches of
government.
Justice Alito's comments echoed legal arguments made to
block information requests from the Senate Judiciary
Committee and the Senate Finance Committee, on both of which
I serve. Those arguments assert (in my view wrongly) that our
constitutional separation of powers blocks any congressional
action in this area, which in turn is asserted (also wrongly,
in my view) to block any congressional investigation. Sound
or unsound, it is their argument against our investigations,
as reflected in the letter appended hereto. The subjects of
these committee investigations are matters relating to dozens
of unreported gifts donated to justices of the Supreme Court.
As the author of the bill at issue, and as the only Senator
serving in the majority on both investigating committees, I
bring this complaint.
Improper Opining on a Legal Issue that May Come Before the Court
On the Senate Judiciary Committee, we have heard in every
recent confirmation hearing that it would be improper to
express opinions on matters that might come before the Court.
In this instance, Justice Alito expressed an opinion on a
matter that could well come before the Court.
That conduct seems indisputably to violate the Code of
Conduct for United States Judges. Canon 1 emphasizes a
judge's obligation to ``uphold the integrity and independence
of the judiciary''; Canon 2(A) instructs judges to ``act at
all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary''; and Canon
3(A)(6) provides that judges ``should not make public comment
on the merits of a matter pending or impending in any
court.'' These canons help ensure ``the integrity and
independence of the judiciary'' by requiring judges' conduct
to be at all times consistent with the preservation of
judicial impartiality and the appearance thereof.
The Court's Statement of Ethics Principles and Practices,
``to which all of the current members of the Supreme Court
subscribe,'' concurs. That document makes clear that, before
speaking to the public, ``a Justice should consider whether
doing so would create an appearance of impropriety in the
minds of reasonable members of the public. There is an
appearance of impropriety when an unbiased and reasonable
person who is aware of all relevant facts would doubt that
the Justice could fairly discharge his or her duties.'' These
same precepts are also enforced through the federal recusal
statute, which requires all federal justices and judges to
recuse themselves from any matter in which their impartiality
could reasonably be questioned.
Making public comments assessing the merits of a legal
issue that could come before the Court undoubtedly creates
the very appearance of impropriety these rules are meant to
protect against. As Justice Kavanaugh pointed out, prejudging
an issue in this manner is ``inconsistent with judicial
independence, rooted in Article III,'' because ``litigants
who come before [the Court] have to know we have an open
mind, that we do not have a closed mind.''
Justice Alito and every other sitting member of the Supreme
Court told the Senate Judiciary Committee during their
confirmation hearings that it would be (in the words of
Justice Alito) ``improper'' and a ``disservice to the
judicial process'' for a Supreme Court nominee to comment on
issues that might come before the Court. Justice Thomas said
that such comments would at minimum ``leave the impression
that I prejudged this issue,'' which would be ``inappropriate
for any judge who is worth his or her salt.'' Justice Kagan
echoed those comments, telling the Committee it would be
``inappropriate'' for her to ``give any indication of how she
would rule in a case''--even ``in a somewhat veiled manner.''
And Justice Kavanaugh explained that nominees ``cannot
discuss cases or issues that might come before them.'' He
continued: ``As Justice Ginsburg said, no hints, no
forecasts, no previews.''
Justice Gorsuch made clear during his confirmation hearing
that this rule applies to the precise topic on which Justice
Alito opined to the Wall Street Journal:
Senator Blumenthal. Thank you. I also want to raise a
question, talking about court procedure, relating to
conflicts of interest and ethics. I think you were asked
yesterday about the proposed ethics rules that have been
applied to your court--
Judge Gorsuch. Yes.
Senator Blumenthal: [continuing]. To the appellate court,
to the District Court, but not to the Supreme Court. Would
you view such legislation as a violation of the separation of
powers?
Judge Gorsuch. Senator, I am afraid I just have to
respectfully decline to comment on that because I am afraid
that could be a case or controversy, and you can see how it
might be. I can understand Congress? concern and interest in
this area. I understand that. But I think the proper way to
test that question is the prescribed process of legislation
and litigation.
You, Justice Sotomayor, and Justice Barrett each expressly
cited the canons of judicial ethics as the source of a
nominee's obligation to refuse to comment on such matters.
There seems to be no question that Justice Alito is bound by,
and that his opining violated, these principles.
Improper Intrusion into a Specific Matter
These principles apply broadly to any opining, on any issue
that might perhaps come before the Court. But here it was
worse; it was not just general opining, it was opining in
relation to a specific ongoing dispute. The quote at issue in
the article--``No provision in the Constitution gives
[Congress] the authority to regulate the Supreme Court''--
directly follows a mention of my judicial ethics bill.
Justice Alito's decision to opine publicly on the
constitutionality of that bill may well embolden legal
challenges to the bill should it become law. Indeed, his
comments encourage challenges to all manner of judicial
ethics laws already on the books.
Justice Alito's opining will also fuel obstruction of our
Senate investigations into these matters. To inform its work
on my bill and other judicial ethics legislation, and oversee
the performance of the statutory Judicial Conference in this
arena, the Senate Judiciary Committee is investigating
multiple reports that Supreme Court justices have accepted
and failed to disclose lavish gifts from billionaire
benefactors. Separately, the Senate Finance Committee is
investigating the federal tax considerations surrounding the
billionaires? undisclosed gifts to Supreme Court justices.
Both committees' inquiries have been stymied by individuals
asserting that Congress has no constitutional authority to
legislate in this area, hence no authority to investigate.
Justice Alito's public comments prop up these theories.
As the author of the bill in question and as a participant
in the related investigations, I feel acutely the targeting
of this work by Justice Alito, and consider it more than just
misguided or accidental general opining. It is directed to my
work.
Improper Intrusion into a specific matter at the behest of counsel in
that matter
Compounding the issues above, Attorney David Rivkin was one
of the interviewers in the Wall Street Journal piece, and
also a lawyer in the above dispute. This dual role suggests
that Justice Alito may have opined on this matter at the
behest of Mr. Rivkin himself. Bad enough that a justice
opines on some general matter that may come before the Court;
worse when the opining brings his influence to bear in a
specific ongoing legal dispute; worse still when the
influence of a justice appears to have been summoned by
counsel to a party in that dispute.
The timeline of the Wall Street Journal interview suggests
that its release was coordinated with Mr. Rivkin's efforts to
block our inquiry. Mr. Rivkin's interview with Justice Alito
was reportedly conducted in ``early July'' 2023. On July 11,
Senate Judiciary Committee Chair Durbin and I sent a letter
to Mr. Rivkin's client inquiring about undisclosed gifts and
travel provided to justices. On July 20, the Senate Judiciary
Committee voted to advance my judicial ethics bill mentioned
above. (Notably, the Rivkin/Alito Congress-has-no-authority
argument fared poorly in the committee that day, with no
Republican rising to rebut the arguments against it.) On July
25, Mr. Rivkin by letter refused to provide the requested
information on the purported ground that ``any attempt by
Congress to enact ethics standards for the Supreme Court
would falter on constitutional objections.'' That response,
appended hereto, was instantly published in Fox News Three
days later, on July 28, the Wall Street Journal editorial
page published the supportive opining from Justice Alito.
Improper Intrusion into a Specific Matter Involving an Undisclosed
Personal Relationship
On top of all this, the dispute upon which Justice Alito
opined involves an individual with whom Justice Alito has a
longstanding personal and political relationship. As my
colleagues and I pointed out in our August 3 letter, ``Mr.
Rivkin is counsel for Leonard Leo with regard to [the
Judiciary] Committee's investigation into Mr, Leo's actions
to facilitate gifts of free transportation and lodging that
Justice Alito accepted from
[[Page S4715]]
Paul Singer and Robin Arkley II in 2008.'' Mr. Leo was
Justice Alito's companion on the luxurious Alaskan fishing
trip in 2008 and facilitated the gifts to the justice of free
transportation and lodging. Two years earlier, Mr. Leo's
political organization ``had run an advertising campaign
supporting Alito in his confirmation fight, and Leo was
reportedly part of the team that prepared Alito for his
Senate hearings.
The timing of Justice Alito's opining suggests that he
intervened to give his friend and political ally support in
his effort to block congressional inquiries. It appears that
Justice Alito (a) opined (b) on a specific ongoing dispute
(c) at the behest of counsel in that dispute (d) to the
benefit of a personal friend and ally. Each is objectionable,
and appears to violate, inter alia, Canon 2(B) of the Code of
Conduct for United States Judges, which provides, ``A judge
should neither lend the prestige of the judicial office to
advance the private interests of the judge or others nor
convey or permit others to convey the impression that they
are in a special position to influence the judge.''
Improper Use of Judicial Office for Personal Benefit
The final unpleasant fact in this affair is that Justice
Alito's opining, apparently at the behest of his friend and
ally's lawyer, props up an argument being used to block
inquiry into undisclosed gifts and travel received by Justice
Alito. At the end, Justice Alito is the beneficiary of his
own improper opining. This implicates Canon 2(B) strictures
against improperly using one's office to further a personal
interest: a justice obstructing a congressional investigation
that implicates his own conduct.
The Senate Judiciary Committee's investigation encompasses
reports that Justice Alito accepted but did not disclose
gifts of travel and lodging valued in the tens of thousands
of dollars. Further investigation may reveal additional
information that Justice Alito would prefer not come to
light. The facts as already reported suggest that Justice
Alito likely violated the financial disclosure requirements
of the Ethics in Government Act. Perhaps Justice Alito should
also have recused himself as required by the recusal statute
in a 2014 case involving a company owned by Paul Singer, one
of the billionaires who attended and paid for his Alaskan
fishing vacation. Justice Alito's public suggestion that
these laws are unconstitutional as applied to the Supreme
Court, and that Congress lacks authority to amend them or
investigate their implementation or enforcement, appears
designed to impede Senate efforts to investigate these and
other potential abuses.
Conclusion
In the worst case facts may reveal, Justice Alito was
involved in an organized campaign to block congressional
action with regard to a matter in which he has a personal
stake. Whether Justice Alito was unwittingly used to provide
fodder for such interference, or intentionally participated,
is a question whose answer requires additional facts. The
heart of any due process is a fair determination of the
facts. Uniquely in the whole of government, the Supreme Court
has insulated its justices from any semblance of fair fact-
finding. The obstructive campaign run by Mr. Rivkin and Mr.
Leo, fueled by Justice Alito's opining, appears intended to
prevent Congress from gathering precisely those facts.
As you have repeatedly emphasized, the Supreme Court should
not be helpless when it comes to policing its own members'
ethical obligations. But it is necessarily helpless if there
is no process of fair fact-finding, nor independent decision-
making. I request that you as Chief Justice, or through the
Judicial Conference, take whatever steps are necessary to
investigate this affair and provide the public with prompt
and trustworthy answers.
Sincerely,
Sheldon Whitehouse,
Chairman, Senate Judiciary Subcommittee on Federal Courts,
Oversight, Agency Action, and Federal Rights.
____
Baker Hostetler,
July 25, 2023.
Re Response to July 11, 2023 Letter to Leonard Leo.
Dear Chairman Durbin and Senator Whitehouse: We write on
behalf of Leonard Leo in response to your letter of July 11,
2023, which requested information concerning Mr. Leo's
interactions with Supreme Court Justices. We understand this
inquiry is part of an investigation certain members of the
Senate Judiciary Committee have undertaken regarding ethics
standards and the Supreme Court. While we respect the
Committee's oversight role, after reviewing your July 11
Letter, the nature of this investigation, and the
circumstances surrounding your interest in Mr. Leo, we
believe that your inquiry exceeds the limits placed by the
Constitution on the Committee's investigative authority.
Your investigation of Mr. Leo infringes two provisions of
the Bill of Rights. By selectively targeting Mr. Leo for
investigation on a politically charged basis, while ignoring
other potential sources of information on the asserted topic
of interest who are similarly situated to Mr. Leo but have
different political views that are more consistent with those
of the Committee majority, your inquiry appears to be
political retaliation against a private citizen in violation
of the First Amendment. For similar reasons, your inquiry
cannot be reconciled with the Equal Protection component of
the Due Process Clause of the Fifth Amendment. And regardless
of its other constitutional infirmities, it appears that your
investigation lacks a valid legislative purpose, because the
legislation the Committee is considering would be
unconstitutional if enacted.
The Committee's Inquiry Raises Serious First Amendment Concerns
Bedrock constitutional principles dictate that ``no
official, high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion, or other matters of
opinion.'' W. Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943). In the guise of conducting an
investigation concerning Supreme Court ethics, the Committee
appears to be targeting Mr. Leo because of disagreement with
his political activities and viewpoints on issues pertaining
to our federal judiciary. An investigation so squarely at
odds with the First Amendment cannot be maintained.
Mr. Leo is entitled by the First Amendment to engage in
public advocacy, associate with others who share his views,
and express opinions on important matters of public concern.
``[T]he freedom to think and speak is among our inalienable
human rights.'' 303 Creative LLC v. Elenis, 143 S. Ct. 2298,
2311 (2023). Indeed, expressive activity of this kind is
afforded the greatest protection possible. See Connick v.
Myers, 461 U.S. 138, 145 (1983) (``[S]peech on public issues
occupies the `highest rung of the hierarchy [sic] of First
Amendment values,' and is entitled to special protection.''
(quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913
(1982)). Yet Mr. Leo has, for years, been the subject of
vicious attacks by members of Congress, specifically
including members of the Committee majority, because of how
he chooses to exercise his rights. In reference to Mr. Leo's
public advocacy work, for example, Senator Whitehouse has
called Mr. Leo the ``little spider that you find at the
center of the dark money web.'' Senator Sheldon Whitehouse,
Remarks on the Floor of the United State Senate (Sept. 13,
2022). Similar remarks from Senator Whitehouse and others are
too numerous to recount.
This campaign of innuendo and character assassination has
now moved beyond angry speeches and disparaging soundbites.
In the July 11 Letter, Committee Democrats have now wielded
the investigative powers of Congress to harass Mr. Leo for
exercising his First Amendment rights. That transforms what
has to this point been a nuisance occasioned by intemperate
rhetoric into a constitutional transgression.
``[T]he First Amendment prohibits government officials from
subjecting an individual to retaliatory actions for engaging
in protected speech.'' Nieves v. Bartlett, 139 S. Ct. 1715,
1722 (2019) (quotation omitted). Thus, an official is
prohibited from ``tak[ing] adverse action against someone
based on'' that person's expressive activity. Id. This bar
against retaliatory action applies to Congress as much when
it acts in its investigative capacity as when it legislates.
See Barenblatt v. United States, 360 U.S. 109, 126 (1959)
(``[T]he provisions of the First Amendment . . . of course
reach and limit congressional investigations.'').
The Committee's investigation into Mr. Leo's relationship
with Justice Alito quite clearly constitutes an adverse
action for purposes of the First Amendment. The burden
created by a congressional inquiry is significant. See
Watkins v. U.S., 354 U.S. 178, 197 (1957) (``The mere
summoning of a witness and compelling him to testify, against
his will, about his beliefs, expressions or associations is a
measure of governmental interference.''). It can chill
expressive activity and infringe on First Amendment rights.
See, e.g., Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir.
2001) (``Any form of official retaliation for exercising
one's freedom of speech, including prosecution, threatened
prosecution, bad faith investigation, and legal
harassment, constitutes an infringement of that
freedom.''); see also United States v. Hansen, 143 S. Ct.
1932, 1963 (2023) (Jackson, J., dissenting) (noting that
an investigative letter sent by members of Congress ``can
plainly chill speech, even though it is not a prosecution
(and, for that matter, even if a formal investigation
never materializes).'').
It seems clear that this targeted inquiry is motivated
primarily, if not entirely, by a dislike for Mr. Leo's
expressive activities. Retaliatory motive can be shown in at
least two ways: (1) where the ``evidence of the motive and
the [adverse action] [are] sufficient for a circumstantial
demonstration that the one caused the other,'' Hartman v.
Moore, 547 U.S. 250, 260 (2006); or (2) where ``otherwise
similarly situated individuals not engaged in the same sort
of protected speech'' were not subjected to the same adverse
action, Nieves, 139 S. Ct. at 1727. Both circumstances are
present here.
As noted, Mr. Leo and the groups with which he is
affiliated have been subjected to a barrage of disparaging
remarks because of their views on judicial nominations and
other judicial matters. Sen. Whitehouse has attacked ``creepy
right-wing billionaires who stay out of the limelight and let
others, namely Leonard Leo and his crew, operate their''
supposed ``far-right scheme to capture and control our
Supreme Court.'' Senator Sheldon Whitehouse, Remarks on the
Floor of the United State Senate (July 12, 2023). Senator
Durbin has similarly decried ``Leonard Leo and the Federalist
Society'' for their
[[Page S4716]]
``joint effort [with] very conservative groups, special
interest, dark money groups, and the Republican party'' to
shape ``what will be the future of the court.'' Senator
Richard Durbin, Interview with the Washington Post (July 13,
2023). And perhaps most tellingly, the present investigation
was announced with a statement titled``Whitehouse, Durbin Ask
Leonard Leo and Right-Wing Billionaires for Full Accounting
of Gifts to Supreme Court Justices.'' Sens. Richard Durbin
and Sheldon Whitehouse, Press Statement (July 12, 2023).
These explicitly political attacks, and others like them,
made over the course of many years and reaching a crescendo
in the days immediately following the transmission of the
letter to Mr. Leo, provide an ample basis for concluding that
the July 11 Letter is animated by animus toward
``conservative'' ``Right-Wing'' views and organizations,
rather than a purely genuine concern about Supreme Court
ethics. See Lyberger v. Snider, 42 F.4th 807, 813 (7th Cir.
2022) (explaining that statements from officials who took
adverse action can demonstrate retaliatory motive). The
circumstances of the Committee's investigation show that
``retaliatory animus actually caused'' the adverse action
taken against Mr. Leo. Nieves, 139 S. Ct. at 1723.
This conclusion is confirmed by the targeted and one-sided
nature of the investigation. Despite professing interest in
potential ethics violations and influence-peddling at the
Supreme Court, the Committee has focused its inquiries on
individuals who have relationships with Justices appointed by
Republican Presidents. Reported instances of Democrat-
appointed Justices accepting personal hospitality or other
items of value from private individuals have been ignored.
Here are some examples:
In 2019, Justice Ruth Bader Ginsburg was given a $1 million
award by the Berggruen Institute, an organization founded by
billionaire investor Nicolas Berggruen. See Andrew Kerr, Ruth
Bader Ginsburg's Mysterious $1 Million Prize, Washington Free
Beacon (July 19, 2023). Justice Ginsburg used the money to
make donations to various charitable causes of her choosing,
most of which remain unknown. See id.
Between 2004 and 2016, Justice Stephen Breyer took at least
225 trips that were paid for by private individuals,
including a 2013 trip to a private compound in Nantucket with
billionaire David Rubenstein, who has a history of donating
to liberal causes. See Marty Schladen, U.S. Supreme Court
justices take lavish gifts--then raise the bar for bribery
prosecutions, Ohio Capital Journal (April 26, 2023).
On September 30, 2022, the Library of Congress hosted an
expensive investiture celebration for Justice Ketanji Brown
Jackson that was funded by undisclosed donors. See Houston
Keene, Library of Congress explains why it hosted Jackson
investiture but not for Gorsuch, Kavanaugh, Barrett, Fox News
(Sept. 30, 2022).
On two occasions, Justice Sonia Sotomayor failed to recuse
herself from cases involving her publisher, Penguin Random
House, which had paid her $3.6 million for the right to
publish her books. See Victor Nava, Justice Sonia Sotomayor
didn't recuse her self from cases involving publisher that
paid her $3M: report, N.Y. Post (May 4, 2023).
Justice Sonia Sotomayor used taxpayer-funded Supreme Court
personnel to promote sales of her books, from which she
earned millions of dollars, including at least $400,000 in
royalties. See Brian Slodysko & Eric Tucker, Supreme Court
Justice Sotomayor's I staff prodded colleges and libraries to
buy her books, Associated Press (July 11, 2023).
Throughout her tenure on the Supreme Court, Justice Ruth
Bader Ginsburg maintained a close relationship with the pro-
abortion group National Organization for Women (``NOW''),
which frequently had business before the Court. See Richard
A. Serrano & David G. Savage, Ginsburg Has Ties to Activist
Group, Los Angeles Times (Mar. 11, 2004). Among other things,
Justice Ginsburg helped the organization fundraise by
donating an autographed copy of one of her decisions, and
contributed to its lecture series, even as she participated
in cases in which NOW filed amicus briefs. See id.; Katelynn
Richardson, Here Are the Times Liberal Justices had Political
Engagements that Were Largely Ignored by Democrats, Daily
Caller (May 5, 2023).
Mr. WHITEHOUSE. I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________